By Nicole Kraft
The aftershocks of the 2020 presidential election continue to reverberate in politics and the media, building to an crescendo in a high-profile defamation lawsuit.
The trial is slated to begin the week of April 16, 2023, in the case of U.S. Dominion, Inc. v. Fox News Network. The lawsuit rests on whether false claims Fox hosts and their guests made about Dominion’s voting machines after President Joe Biden was elected were defamatory. Dominion is suing Fox for US$1.6 billion.
Fox News hosts said on air that that there were “voting irregularities” with Dominion’s voting machines – while privately saying that such claims were baseless.
The statements have already been proved false. Delaware Superior Court Judge Eric M. Davis ruled on March 31, 2023, that it “is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.”
The question now is whether the statements harmed Dominion’s reputation enough to rise to the level of defamation.
I am a longtime journalist and journalism professor who teaches the realities and challenges of defamation law as it relates to the news industry. Being accused of defamation is among a journalist’s worst nightmares, but it is far easier to throw around as an accusation than it is to actually prove fault.
Nathan Posner/Anadolu Agency via Getty Images
Understanding defamation
Defamation happens when someone publishes or publicly broadcasts falsehoods about a person or a corporation in a way that harms their reputation to the point of damage. When the false statements are written, it is legally considered libel. When the falsehoods are spoken or aired on a live TV broadcast, for example, it is called slander.
To be considered defamation, information or claims must be presented as fact and disseminated so others read or see it and must identify the person or business and offer the information with a reckless disregard for the truth.
Defamation plaintiffs can be private, ordinary people who must prove the reporting was done with negligence to win their suit. Public people like celebrities or politicians have a higher burden of proof, which is summed up as actual malice, or overt intention to harm a reputation.
The ultimate defense against defamation is truth, but there are others.
Opinion that is not provable fact is protected, for example.
Neutral reportage – a legal term that means the media reports fairly, if inaccurately, about public figures – can legally protect journalists.
But Davis rejected both of those arguments in the federal Dominion case.
Davis determined Fox aired falsehoods when it allowed Trump supporters to claim on air that Dominion rigged voting machines to increase President Joe Biden’s number of votes. He also said that these actions harmed the Dominion’s reputation.
Proving actual malice
The primary question for the jury will be whether Fox broadcasters knew the statements were false when they aired them. If they did, it would mean they acted with actual malice, the standard required to prove a case of defamation for a public person, entity or figure.
The U.S. Supreme Court established actual malice as a legal criterion of defamation in 1964 when L.B. Sullivan, a police commissioner in Alabama, felt his reputation had been harmed by a civil rights ad run in The New York Times that contained several inaccuracies. Sullivan sued and was awarded $500,000 by a jury. The state Supreme Court affirmed the decision and the Times appealed.
The U.S. Supreme Court ruled in 1964 that proof of defamation required evidence that the advertisement creator had serious doubts about the truth of the statement and published it anyway, with the goal to harm the subject’s reputation.
Simply put, the burden of proof shifted from the accused to the accuser.
And that is a hurdle most cannot overcome when claiming defamation.
Why proving defamation is so hard
It is incredibly hard to prove in court that someone set out do harm in publishing facts that are ultimately proved to be untrue.
Most times, falsehoods in a story are the result of insufficient information at the time of reporting.
Sometimes an article’s inaccuracies are the result of bad reporting. Other times the errors are a result of actual negligence.
This happened when Rolling Stone magazine published an article in 2014 about the gang rape of a student at the University of Virginia. It turned out that many parts of the story were not true and not properly vetted by the magazine.
Nicole Eramo, the former associate dean of students at the University of Virginia, sued Rolling Stone, claiming the story false alleged that she knew about and covered up a gang rape at a fraternity on campus. They reached a settlement on the lawsuit in 2017.
Not meeting the malice standard
There are also some recent examples of a defamation lawsuit’s not meeting the actual malice standard.
This includes Alaskan politician Sarah Palin, who sued The New York Times over publication of an editorial in 2017 that erroneously stated her political rhetoric led to a mass shooting. The jury said the information might be inaccurate, but she had not proved actual malice standard.
Long before he was president, Donald Trump had a 2011 libel suit dismissed after a New Jersey appeals court said there was no proof a book author showed actual malice when he cited three unnamed sources who estimated Trump was a millionaire, not a billionaire.
It is so difficult for public figures to meet the actual malice standard and prove defamation that most defamation defendants spend most of their legal preparation time trying to prove they are not actually in the public eye. Their reputations, according to the court, are not as fragile as that of a private person.
Private people must prove only negligence to be successful in a defamation lawsuit. That means that someone did not seriously try to consider whether a statement was true or not before publishing it.
Erik McGregor/LightRocket via Getty Images
Defamation cases that went ahead
Some public figures, however, have prevailed in proving defamation.
American actress Carol Burnett won the first-ever defamation suit against the National Inquirer when a jury decided a 1976 gossip column describing her as intoxicated in a restaurant encounter with former Secretary of State Henry A. Kissinger was known to be false when it was published.
Most recently, Cardi B won a defamation lawsuit against a celebrity news blogger who posted videos falsely stating the Grammy-winning rapper used cocaine, had herpes and took part in prostitution.
The case of Dominion
Whether Dominion can prove actual malice is up for the jury to decide, but Fox pundits have helped the plaintiff’s case by acknowledging they knew information was false before they aired it and leaving a copious trail of comments such as, “this dominion stuff is total bs.”
Fox’s position is that despite knowing claims made by guests about Dominion were false, the claims were newsworthy.
Does this qualify as actual malice or simply bad journalism?
The decision could send quivers through the political media landscape for years to come.
Nicole Kraft is Associate Professor of Clinical Communication at The Ohio State University.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
don miller says
yes, and dominion knows it has no case. but they are depending on a jury of know nothings that don’t care about what the law requires to prove a case. it is all about whether the jury likes you or not. just like voters that know nothing but vote on personalities . we are becoming just like a high school student gov popularity election. when you bring a case like dominion has and lose, you should have to pay the other party’s legal fees. that will stop frivolity.
Skibum says
Wow! I think you are soon going to be very upset when Dominion prevails in their landmark civil case against the Fauxinfotainment network and their talking heads and CEO, all of which have ADMITTED that the network’s “news” programs intentionally LIED about the election fraud and Rupert Murdoch himself has stated under oath that he both knew about the many lies being put out their by the on-air pundits AND he chose not to do anything about it. Normally, these cases are extremely difficult to prove in court. But in this case, there are troves of documents, emails, text messages from Murdoch and many, many executives and on-air personalities admitting their lies, so I think even a poor lawyer would not have a hard time proving such a case in court, and probably why Faux itself has tried so hard to first off limit or exclude as many of the documented emails and text messages from being entered as evidence against them, and when that failed, have been in negotiations with Dominion to try to reach an out of court settlement with Dominion so they don’t lose so many millions of dollars when this case is eventually decided against the network. Just be warned however, that if you continue to watch only that so-called “news” network you very likely will never hear the result of this court case because they have a real aversion to the truth for one thing, and seem to only put topics on their channel and website that does not make them look bad, and THIS has and will continue to make Fauxinfotainment look very, very bad… which, of course, IT IS!
Gene says
You seem a bit bothered by this. Let’s see ……. Hannity, Carlson, Ingraham, and Bartiromo all are either recorded, on text messages or emails that clearly show they knew they were not being truthful. Tucker called trump a moron. Both Murdoch’s have admitted in depositions that they knew that what was being said wasn’t true. And just yesterday Fox’s attorneys apologized to the judge for hiding information. Will Dominion win? Who knows, but is there a case to be made that Fox is liable. Absolutely.
@ Don Miller says
Agreed.
Florida Voter says
I do not think this article means what you think it means.
“The primary question for the jury will be whether Fox broadcasters knew the statements were false when they aired them.”
The case already has several items stating as much: 1) emails between FOX higher-ups stating that the claims are “B.S.” even though the claims are repeated later on some of the FOX “talking heads” shows.
2) FOX issuing corrections on some other shows at non-prime time slots, then again airing the false claims
3) it goes on and on and on.
The FOX executives stated that the claims were false, but still aired those claims. They stated that the claims were false both internally and on air. Dominion lost contracts (i.e. $$$), and Dominion employees received death threats based on those claims.
I hope Dominion wins their full amount and then I hope that the Dominion employees file subsequent law suits. FOX twisted the minds of their viewers for “ratings” at great cost to our democracy, the reputation of our country, and the safety of many individuals.
YankeeExPat says
no case ?
Then why did Fox settle for $787.5 Million
Shawn /Tucker /Bartiromo /Pirro/Kudlow/Varney and all the other miscreants were lying through their teeth
Geezer says
“dominion knows it has no case” :-0
There are 787 million reasons why Fox just settled with Dominion, today April 18, 2023.
No case, professor?
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Concurrently press the shift key and the desired letter keys.
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Press the shift key and the letter key at the same time.
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Do your homework.
Laurel says
Don Miller: Fox blatantly lied, they admitted it, and you know it. Yes, it is defamation when your business will not be used again because millions of Americans believe the bullshit Fox broadcasts over the air and cable about your business, and they know exactly what they were doing. How, exactly, do you know that the jury is a “…jury of know nothings that don’t care what the law requires…” Did you do the jury selection? “…frivolity.” This Russian style propaganda needs to end now.
Gene says
Don’s comment did not age well.
joe says
“…and dominion knows it has no case.”
Well, FOX News sure thinks they do…..they agreed to pay 787.5 million dollars to Dominion to settle the case. And to avoid further evidence of their knowing lies.
“…depending on a jury of know-nothings..”
So, I guess you were in the courtroom during jury selection?
Pogo says
@Adios — Fox & Fools
https://en.wikipedia.org/wiki/Goldwater_v._Ginzburg
Smell ya later…
DaleL says
It is true as written in this story that “It is incredibly hard to prove in court that someone set out do harm in publishing facts that are ultimately proved to be untrue. Most times, falsehoods in a story are the result of insufficient information at the time of reporting. Sometimes an article’s inaccuracies are the result of bad reporting. Other times the errors are a result of actual negligence.”
However, it has already been shown that Fox “news” knew at the time they were pushing lies (not “facts”), that they knew they were lies. When Fox was pushing lies, they had sufficient information at the time of the “reporting”. This was not negligence; this was intentional.
The lies propagated by Fox against Dominion were not the result of sloppy reporting or ignorant talking heads. They were a repeated pattern of a complete disregard for the truth. A pattern of lies that were engaged in for the sole purpose of profit (audience) at Dominion’s expense.
Fox “news” made 1.23 billion dollars net profit in 2022 and 2.2 billion dollars net profit in 2021. Paying Dominion 1.6 billion dollars will not bankrupt Fox. It will just eliminate about one year of profit. What I suspect is going on is that Fox “news” does not want to be forced to apologize on air, own up and risk losing audience.
Pogo says
@787 billion dollars of hush money — to avoid a verdict
Bill C says
Fox has to cough up 787.5 million dollars- that’s a lot of My Pillows they have to sell!
Pogo says
@Pogo
Hey, it was only 787 million dollars.
You’re right Pogo. It should have been billion.
And so it goes.
feddy65 says
Fox was completely caught lying no doubt about it and the settlement was just a way to get it to go away with no criminal liability awarded to Fox. Now with that being said it is not just Fox, it’s all of them Remember Nicholas Sandmann the high schooler who was at a protest and was accused of blocking a individual, well CNN and the Washington Post have already settled with other outlets pending. The major news outlets do not employee journalist anymore, they are all opinion writers who are obviously bias and they pass off their work as fact. I never bought in to this theory about the voting machines but if you looked on social media there was a lot of so called proof but of course you could spot that it was fake. My friend is one of those and he sent me a video that was 15 minutes long laying out how it was done, the votes were sent to the machines from a location in Europe by a CIA agent that retired just before the election and they had affidavits signed but they couldn’t get the whistle blower out of Europe because their plane was detoured. And people buy this crap, social media has made people dumber and that was the biggest part of spinning these theories.
Atwp says
Hope they will go broke. Glad they have to pay out millions. Another suit on the way. Just love it.
Sherry says
And. . . the FOX brainwashing “beat goes on”!!!
NEW YORK (AP) — Days after Fox News agreed to pay nearly $800 million to settle a lawsuit over its airing of 2020 election lies, you’d be hard-pressed to notice anything had changed there.
Tucker Carlson, Sean Hannity and Laura Ingraham led their shows Thursday talking about Hunter Biden, the president’s son. Ingraham’s show warned, “The left wants the government to be your only family.” Hannity targeted familiar villains — Rep. Alexandria Ocasio-Cortez, D-N.Y., and Vice President Kamala Harris. Carlson mocked a speech on racial equity, saying it meant “that straight white men are bad.”
Experts doubt the settlement will lead to much of a course correction in conservative media, save for a little less specificity to avoid future lawsuits.